In an old post, about a year ago, I suggested that Originalism with respect to constitutional interpretation is fundamentally different from an traditional approach to interpreting Halakhah. Here’s the relevant excerpt:
The Torah itself is God’s message to humanity and thus, interpreting the Torah is inextricably tied to interpreting God’s will or intention. Consider an analogy: Somebody writes you a rather vague letter. In trying to make sense of the letter itself, you’re also trying to figure out what the author had in mind while writing it. You can’t separate those two tasks.
The Constitution, on the other hand, is not simply the will of James Madison or of the members of Constitutional Convention. The relationship of Madison’s intention with the text of the Constitution is incidental.
George objects to my distinction. In a recent email (it’s actually not so recent but I procrastinated responding to him), he writes:
how is the constitution not simply the will of the cont[i]nental congress (representing the will of the nation). if it is how it that diffrent from reading and interpreting a letter a friend sent you?
The key difference between the Constitution as “the will of the [C]ont[i]nental [C]ongress” and Halakhah as God’s will is one of justification. The Torah’s authority is justified by God having commanded it. (That’s an oversimplification but I don’t want to get into the Euthyphro dilemma right now.) The goal of interpreting the Torah (and, by extension, Halakhah in general) is to identify what message God intends to convey because what justifies it is God intending to convey it. Interpreting a letter from a friend is similar insofar as the goal is to figure out what my friend wants to tell me. The letter would have no function otherwise.
The Constitution, on the other hand, does not derive its authority from James Madison or the Continental Congress. Had it been written by a 10-year-old who was bored one day during math class and then ratified by the states, it would have the same status that it has today.
yes its true that had the states ratified the musings of an absent minded ten year old they would be binding. so the binding nature of it is in the ratification.
however…they would not have ratfied the musinsing of a ten year old….the reson it was ratified is becuase of the scholorship of the authors and the ethos of their personalities…also understand it wasnt ratified completly democratically…a representative democracy always provides for the special enginuity of the representatives as opposed to straight refferendums….the constituion was ratified and drafted by skilled representatives of the people NOT ten year olds.
so the people invested some trust into the meaning of what madison said. thus its origional meaning has importance too. (i understand its not THE SAME importance as if the ENTIRE constitution rested on the meaning of madison (as the torah rests entriely on gods meaning) but the origonal meaning is still important.
Comment by Geogre — September 5, 2006 @ 1:49 pm
Good points, David. Here’s one more: the God who wrote the Torah still lives, and so His intention is still completely, supremely relevant, since Torah can be considered standing orders from a boss who is still present. The Constitution, on the other hand, represents the will of The People. The people who were The People are now all dead, and we, the people, have inherited their title as We The People. So the boss has changed, and is now us. That doesn’t mean we shouldn’t respect the constitutional process we’re buying into, and confine our lawmaking in order to conform to it, but it does make the whole mess a very different ballgame than interpreting the wishes of God, who is still around.
Comment by Seth Chalmer — September 5, 2006 @ 6:33 pm
George,
I didn’t say original meaning isn’t important. I said it’s not authoritative. Context is important in interpreting any document, legal or otherwise, and authorial intention provides context. But that’s about all it does.
Seth,
I actually thought about making your argument. But it’s tricky because it’s unclear what (or who) justifies constitutional authority. One may argue, as you do, that it’s the will of the people. But remember it’s the Constitution itself that creates our democratic government, which in turn represents the will of the people (at least in theory). I have some more thoughts on this but I’ll save it for another post.
Comment by sagoboulevard — September 7, 2006 @ 5:20 pm
Everyone here is confusing original meaning with original intent. Most supporters of originalism support original meaning and NOT original intent and would agree with David that the methods of interpretation (between Halacha and the Constitution) are dissimilar. I might argue that our goal in interpreting Jewish law is not to ascertain G-d’s will, though.
Comment by Nephtuli — September 8, 2006 @ 12:41 am
Nephtuli, I apologize for the confusion. I meant original intent (despite the recent shift toward advocating original meaning). My comment #3 should have said “I didn’t say say original intent isn’t important.”
The context of the earlier post to which George commented was yet another post about lo bashamayim hi, in which I argued that divine intent is integral to paskening halakhah. After I wrote that, I wanted to distinguish that view from the original intent argument in con. law.
As an aside, I’m not too convinced by “original meaning” arguments. For one thing, they strike me as pragmatist arguments in disguise. They’re also based on the fact that it’s practically impossible to determine actual original intent. But let’s say that we were to discover an annotated draft of the Constitution with Madison’s comments in the margains. Would the original meaning proponants jump ship? My argument, I think, would hold up even if we somehow knew the Founders’ original intent.
Comment by sagoboulevard — September 8, 2006 @ 8:36 am
As an aside, I’m not too convinced by “original meaning” arguments. For one thing, they strike me as pragmatist arguments in disguise.
Original meaning arguments are just the natural extension of textualism. The goal of interpretation is to determine the “plain meaning” of the text, and when interpreting a two hundred year old document, plain meaning is determined based on the time. This isn’t a normative argument, but it sure isn’t a pragmatic argument either.
But let’s say that we were to discover an annotated draft of the Constitution with Madison’s comments in the margains. Would the original meaning proponants jump ship? My argument, I think, would hold up even if we somehow knew the Founders’ original intent.
Many orignalists would still refuse to abide by intent. Scalia for example holds that the goal in interpretation is to determine the public meaning of a document (which is why he strongly opposes referencing congressional “intent” when interpreting statutes). Of course he would look at intent as evidence of public meaning, but he would not consider intent dispositive. Jack alkin would also ignore intent since the goal of constitutional interpretation is to figure out the underlying principles imbedded in the text. Sure intent guides us in that endeavor, but it is not dispositive.
I do agree that many originalists shifted to original meaning partly because original intent is unknowable (Bork is a good example).
Comment by Nephtuli — September 8, 2006 @ 11:00 am
Another point here is about epistemic access. The principle lex est rex is critical to democratic jurisprudence. But in order for law, and not it’s author, to truly be king, the meaning of the legislation must be vested in the written law and not in the author. The reason I say this is a point about epistemic access, is that we have epistemic access to what James Madison meant to say or what the Continental Congress meant to ratify only indirectly through the interpretation of the text, but Madison may have written something other than what he meant to write, or he and the Continental Congress may have had different intentions. Furthermore, what if a law was intentionally written misleadingly (as laws today are often named misleadingly - if you live in the US, think about how many times you’ve seen a notice saying “this form is required by the Paperwork Reduction Act”)? It is not what the author meant to say but what he actually said that matters.
This is different with God in two ways: first, it is impossible that he should misspeak. If he has said anything, he said precisely what he meant to say. Secondly, God is King, and the Law matters because it is God’s command, and not simply because it happens to have been passed by some duly constituted legislature or something. God’s government does not “derive its just power from the consent of the governed,” but simply from God’s inherent authority.
Comment by Kenny Pearce — September 9, 2006 @ 7:26 pm
Nephtuli, I’m working on a more expansive post on the subject. Stay tuned.
Kenny, I think you’re basically right. God, not the Torah, is analogous to the Constitution (keveyachol). At the foot of Har Sinai, Israel accepted God’s authority. Madison’s authority was never ratified or accepted. Only his particular words were.
Comment by sagoboulevard — September 10, 2006 @ 11:34 pm